Introduction

8.1 The public expects agencies and ministers to act fairly, transparently and consistently in their administrative decision making and to be accountable for the decisions they make. The quality of decisions under the FOI Act is particularly important given the integral role freedom of information requests have in securing open government.

8.2 The FOI Act contains many decision making powers, including whether to provide access to a requested document, whether to impose a charge for processing a request for access and whether to amend or annotate records of personal information. Most of those decisions are subject to review by the Information Commissioner (see Part 10 of these Guidelines).

8.3 This Part outlines:

the principles of good decision making under the FOI Act

the types of decisions that can be made on requests for access to documents

The principles of good decision making under the FOI Act

8.4 Decisions made under the FOI Act must be consistent both with the requirements of the Act and with general principles of good decision making. Those general principles are explained in five guides published by the Administrative Review Council (ARC).[1] This Part discusses how those principles can be relevant to decisions made under the FOI Act. In summary, as the ARC guides explain, the general principles require that decisions are lawfully made, that procedural fairness is observed, that decisions are based on findings of fact, reasons are given for decisions, and that people directly affected by administrative decisions are informed of their review rights.

Lawfulness

General principle

8.5 A decision that is made under legislation must conform to the requirements of the legislation, and be made by an authorised decision maker. This requirement is explained more fully in the ARC Best Practice Guide No 1, Decision making: Lawfulness.

Decision making under the FOI Act

8.6 The FOI Act specifies in detail how decisions are to be made and the criteria and principles on which decisions are to be based. For example, the Act specifies the agencies and documents to which the Act applies, the procedure for making and notifying decisions on FOI requests, and the exempt documents to which access can be refused. Those FOI provisions are discussed below and in other Parts of these Guidelines.

8.7 Decision making under the FOI Act must take account of the statement of general objects in s 3. As discussed more fully in Part 1 of these Guidelines (paragraphs 1.5–1.7), the general objects embody a policy – or presumption – of open government that is relevant to all FOI decision making. This is emphasised in s 3(4), which states Parliament's intention ‘that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost'. Another specific object, stated in s 3A, is that agencies and ministers retain an administrative discretion (subject to other legislation) to provide access to information and documents other than under the FOI Act.

8.8 Another special provision of the FOI Act is the requirement that decision makers must have regard to these Guidelines when making decisions under the FOI Act (s 93A). The Guidelines are not a legislative instrument (s 93A(3)) and, by contrast with the provisions of the FOI Act, do not have binding force. However, as explained in the Preface to these Guidelines, the OAIC will apply the Guidelines in discharging its review and monitoring functions under the Act.

Authorised decision makers

8.9 The FOI Act specifies that a decision relating to a request made to an agency may be made by the responsible minister or the principal officer of the agency, or by officers who are properly authorised (s 23(1)). An officer should confirm that they are authorised before making a decision. A decision on a request made to a court, tribunal, or authority or body listed in Schedule 1 of the Act may be made by the principal officer, or an officer acting within their scope of authority (s 23(2)).[2]

8.10 Agencies should ensure a sufficient number of officers are authorised at appropriately senior levels to make both original and internal review decisions. The capabilities and work level standards of APS employees may assist agencies to ensure they authorise officers who have the necessary skills.[3] An authorised decision made on a request to a minister may be made by the minister personally or by someone the minister has authorised to act on their behalf, either a member of their staff or an officer of an agency. It would be prudent for a minister to make an authorisation in writing. The decision will be a decision of the minister, not of the person acting on the minister's behalf.

8.11 Authorised officers may obtain assistance from other officers, and take advice and recommendations into account, but they are nevertheless responsible for reaching an independent decision and exercising any discretion.[4]

Procedural fairness

General principle

8.12 A decision that directly affects the rights or interests of a person or organisation must be made in accordance with the principles of natural justice (also known as procedural fairness). The decision maker is required to follow a fair decision making process, complying with the ‘bias rule' and the ‘hearing rule'. These requirements are explained more fully in the ARC Best Practice Guide No 2, Decision Making: Natural Justice.

8.13 The bias rule requires a decision maker to be impartial and have no personal stake in the decision to be made. The decision maker must be free of both actual and apparent bias, that is, of conduct that might appear to a fair-minded observer to affect their impartiality in reaching a decision.[5]

8.14 The hearing rule requires that a person who could be adversely affected by a decision is notified that a decision may be made and is given an opportunity to express their views before that occurs.[6] The nature of this ‘notice and comment' procedure can vary from one decision or context to another. The minimum requirement, however, is that a person should be given sufficient information and a reasonable opportunity to comment, to ensure that procedural fairness is upheld.

The bias rule and FOI decision making

8.15 The bias rule is relevant to all decision making under the FOI Act. Two examples of where caution is needed are:

An authorised FOI decision maker who knows an FOI applicant personally should consider passing the matter to another officer for decision, especially if there is a close or social relationship. Generally, a decision maker is not prevented from making a decision by reason only of former contact with an FOI applicant, which may be a regular occurrence in some agencies.

An FOI decision maker must approach each decision with an open mind and, for example, consider any submission by an applicant as to why a document is not exempt or a charge should be reduced. Generally, a decision maker is not prevented from making a decision by reason of having dealt previously with a similar issue or applicant, or having expressed a view about FOI Act principles or requirements.

8.16 The Australian Public Service Commission has issued guidance material to assist agencies to identify and manage conflicts of interest (available at www.apsc.gov.au/).

The hearing rule and FOI decision making

8.17 The FOI Act specifies in detail the procedure to be followed in making decisions on FOI requests. For example, agencies are required to provide reasonable assistance to persons to make FOI requests (s 15), notify an applicant that a request has been received (s 15(5)), allow an applicant a reasonable opportunity to revise a request before it is refused for a practical refusal reason (s 24AB), allow an applicant to respond before a charge is imposed (s 29), provide to the applicant a written statement of the reasons for the decision (s 26), and advise the applicant of their right to seek internal review or IC review of an adverse decision (s 26(1)(c)). The FOI Act also specifically recognises the right of third parties to be consulted about release of documents that affect their interests in certain circumstances (ss 26A, 26AA, 27 and 27A – see Part 6 of these Guidelines).

8.18 Those procedural requirements, if correctly followed, would adequately meet the decision maker's obligation to observe natural justice. It is nevertheless prudent for decision makers to bear in mind, when implementing the FOI Act, that natural justice is an important, highly-regarded and far-reaching legal obligation that is designed to ensure procedural fairness in administrative decision making.

8.19 A person who disagrees with a decision on access to documents, or amendment or annotation of personal records, has the right to apply for internal review by the agency and review by the Information Commissioner (see Parts 9 and 10 of these Guidelines). The review processes provide a fuller opportunity for an affected person to be heard, and to that extent, for natural justice to be observed.

Facts and evidence

General principle

8.20 An administrative decision must be based on facts. A central obligation of a decision maker is therefore to identify and separate the ‘material questions of fact'; gather and assess information or evidence to support each finding of fact; and explain how each finding of fact was reached. These requirements are explained more fully in the ARC Best Practice Guide No 3, Decision Making: Evidence, Facts and Findings.

8.21 A material question of fact is one that is necessary to a decision – or, put another way, the existence or non-existence of the fact can affect the decision to be made. A statute will ordinarily set out the factual matters that must be considered, but sometimes these will be present more by implication than by direct legislative statement.

8.22 The obligation rests on a decision maker to be reasonably satisfied that a finding of fact can or cannot be made on the available evidence. Unless legislation states otherwise, there is no onus or burden on a party to prove that a fact does or does not exist. In discharging the obligation to be reasonably satisfied, the decision maker may have to draw inferences from the available evidence or information known to the decision maker. The evidence should be logically capable of supporting the decision maker's findings of fact.

Fact finding in FOI decision making

8.23 The obligation on FOI decision makers to base each decision on facts is captured in s 26(1)(a). The statement of reasons for a decision to refuse or defer access to a document ‘shall state the findings on any material question of fact, referring to the material on which those findings were based, and state the reasons for the decision' (see paragraphs 8.54–8.56 below).

8.24 The provisions of the FOI Act specify the material facts that must be examined in deciding whether to grant access to documents in response to an FOI request. Similarly, it is implicit in many provisions of the Act that findings, including inferences from known facts, may need to be made. The following examples are illustrative:

a material fact in considering whether a document is exempt under s 33 is whether release of the document would cause damage to the defence of the Commonwealth

a material fact in considering whether a document falls within the Cabinet document exemption is whether the document was created for the dominant purpose of consideration by Cabinet (s 34(1)(ii))

in making a decision about release of documents it is implied that the decision maker must first make findings about the scope of the request and the documents in the agency's possession that fall within that scope

in deciding whether payment of a charge would cause financial hardship to an applicant (s 29(5)(b)), a decision maker may need to consider the financial position of an applicant, including for example whether the applicant receives income support.

8.25 The FOI Act departs from the standard principle that in administrative proceedings no-one bears an onus of proof. Section 55D(1) provides that in an IC review the agency or Minister concerned has the onus of establishing that a decision given in respect of an FOI request is justified, or that the Information Commissioner should give a decision adverse to the FOI applicant. Similar requirements apply to IC review of decisions refusing to amend or annotate personal records (s 55D(1)), applications by third parties for IC review of access grant decisions (s 55D(2)), and in review by the Administrative Appeals Tribunal (s 61). In the great many other instances under the FOI Act in which decisions are required the standard principle applies, namely, that it is for the decision maker to be reasonably satisfied of the matters to be decided.

Reasons

General principle

8.26 Members of the public are entitled to know the reasons why an administrative decision that affects them has been made. Giving reasons promotes fairness, transparency and accountability. It allows the person affected by the decision the opportunity to have the decision explained and to seek review if they wish. This fundamental theme in administrative law and good decision making is explained more fully in the ARC Best Practice Guide No 4, Decision Making: Reasons.

8.27 The stated reasons should be meaningful and accurate, setting out what the decision maker considered and why, including addressing arguments put to the decision maker. Providing good statements of reasons can lead to greater acceptance by applicants of decisions, with a corresponding reduction in complaints and requests for review.

Reasons under the FOI Act

8.28 Section 26 of the FOI Act requires an applicant to be given the reasons for a decision to refuse or defer access to a document. The section specifies the matters that must be included in the statement of reasons, including the findings on material questions of fact, the public interest factors taken into account in applying a conditional exemption, the name and designation of the agency officer making a decision, and information about the applicant's review rights (see paragraph 8.55 below).

8.29 The FOI Act also requires the Information Commissioner to provide reasons for a decision on a complaint or investigation (ss 75(4), 86(2)) and an application for IC review (s 55K(4)).

Accountability

General principle

8.30 Decision makers are accountable for their decisions. There are many different forms of accountability, including political, ethical and legal accountability. The system of administrative law ensures both legal accountability and good decision making, through external scrutiny, review and transparency measures. Administrative law accountability is explained more fully in the ARC Best Practice Guide No 5, Decision Making: Accountability.

Accountability arrangements under the FOI Act

8.31 The FOI Act, as explained in Parts 10 and 11 of these Guidelines, contains detailed provisions for review and oversight of FOI decision making by the OAIC. Section 26(1)(c) of the Act requires information to be included in the statement of reasons about the applicant's rights to review and the procedures for exercising those rights, and their right to make a complaint to the Information Commissioner.

Decisions on requests for access to documents

8.32 In response to a request for access to documents under the FOI Act, a decision maker may decide:

to allow access to all documents as requested (even if some are exempt)

to withhold all requested documents as exempt

to withhold certain documents as exempt and allow access to the remainder

to defer access to the requested documents until a later date

to delete exempt or irrelevant material from documents and provide access to edited copies

to refuse access on the basis that the document sought does not exist or cannot be found

to refuse to confirm or deny that a document which would be exempt under ss 33 or 37(1) exists.

8.33 It is irrelevant whether or not the applicant already has copies of the documents they have requested.

Deferring access to a document

8.34 Where an agency or minister decides to grant access to a document, they may defer access:

where publication of the document is required by law – until the expiration of the period within which the document is required to be published

where the document has been prepared for presentation to Parliament or for the purpose of being made available to a particular person or body, or with the intention that it should be so made available – until the expiration of a reasonable period after its preparation for it to be so presented or made available

where the premature release of the document would be contrary to the public interest – until any event occurs or the period of time expires after which the release of the document would not be contrary to the public interest

where a minister considers that the document is of such general public interest that the Parliament should be informed of the contents of the document before the document is otherwise made public – until the expiration of five sitting days of either House of Parliament (s 21(1)).

8.35 The agency or minister must inform the applicant of the reasons for deferring access and, as far as practicable, indicate how long the deferment period will be (s 21(2)). A decision to defer access is an access refusal decision that is reviewable by the Information Commissioner (other than where a minister considers that Parliament should first be informed of the contents of the document) (s 53A(d)).

Editing or deleting parts of a document with exempt or irrelevant matter

8.36 An agency or minister may decide to refuse access to a document on the ground that it is exempt. If so, the agency or minister must consider whether it would be reasonably practicable to prepare an edited copy of the document for release to the applicant, that is, a copy with relevant deletions (s 22). The same obligation applies if an agency or minister decides that giving access to a document would disclose information that would reasonably be regarded as irrelevant to the request – that is, consideration should be given to preparing an edited copy for release to the applicant.[7]

8.37 The decision maker should consider the nature and extent of the modifications required, the resources available to modify the document and whether the applicant would accept an edited copy (s 22(1)(c), (d)).

8.38 Where an agency or minister is considering release of a document with a significant number of deletions, such that the document would be of little or no value to the applicant, the agency or minister should take a common sense approach in considering the value of preparing and releasing such a document instead of refusing access to the whole document. It may be sensible to consult the applicant before making that decision.

8.39 Where a decision was made to delete or edit content because it is exempt or irrelevant, an agency or minister must give the applicant notice in writing that the edited copy has been prepared (s 22(3)). This notice must include the grounds for the deletions, including any specific provisions on which exempted matter was deleted (see paragraph 8.69 below). The Information Commissioner also recommends that the decision maker annotate the document where text has been deleted with the grounds for the decision, so that the reason for each deletion is clear to the applicant.

Refusing a request: documents lost, non-existent or not received as required by contract

8.40 An agency or minister can refuse a request for access to a document if they can show they have taken all reasonable steps to locate it and have determined that the document cannot be found or does not exist (s 24A(1)).[8] An agency can also refuse a request for access if they have taken contractual measures to ensure they receive a document from a contracted service provider and have taken all reasonable steps to ensure they receive the document, but have not done so (s 24A(2)).[9]

8.41 The statement of reasons given to the applicant should sufficiently identify the document and give reasons as to why it cannot be found or why it is known that it no longer exists. The statement should describe the steps the agency took to search for it. Where a step or particular search activity was not undertaken because it would have been unreasonable, the decision maker should provide the reasons why. For further information about what constitutes a reasonable search for documents, see Part 3 of these Guidelines. A template to plan and keep track of the steps taken to search for a document will be useful, particularly when managing complex requests for many documents.

8.42 Where the documents are known to have been destroyed, the decision should clearly state the relevant Administrative Functions Disposal Authority or the agency's Records Disposal Authority under which the document was destroyed and the date of destruction. Where the documents were destroyed under normal administrative practices, such as where the documents were ephemeral records not covered by a Disposal Authority,[10] an explanation (such as by reference to the agency's records management policy) should be included in the statement of reasons.

8.43 Where a document is not and would not have been expected to be in an agency's or minister's possession, the agency or minister should explain why. They should also consider transferring the request to another agency or minister if that is appropriate (see Part 3 of these Guidelines).

Refusal to confirm or deny existence of a document

8.44 Sometimes the act of confirming or denying the existence of a document can cause damage similar to disclosing the document itself. For example, merely knowing that an agency has a current telecommunications interception warrant in connection with a specific telephone service would be sufficient warning to a suspect who could modify their behaviour and possibly undermine an investigation into serious criminal activity.

8.45 Section 25(2) allows an agency or minister to give an applicant notice in writing that does not confirm or deny the existence of a document but tells the applicant that, if it existed, such a document would be exempt. This option is only available in relation to the exemptions in ss 33 (documents affecting national security, defence or international relations) and 37(1) (documents affecting enforcement of law and protection of public safety). The other requirements of a s 26 notice still apply (see paragraph 8.49 below).

8.46 Agencies and ministers should use s 25 only in exceptional circumstances. For the purposes of IC review, a notice under s 25 is deemed to be notice of a decision to refuse access on the ground that the document sought is exempt under s 33 or s 37(1), as the case may be (s 25(2)).

Statement of reasons

8.47 A decision maker must give the applicant a statement of reasons if they refuse any aspect of the FOI request or defer access to documents (s 26(1)). Statements of reasons are required at both the original decision and internal review stage. The Information Commissioner must also provide a statement of reasons after making a decision on an IC review (s 55K – see Part 10 of these Guidelines).

When a s 26 statement of reasons is required

8.48 A s 26 statement of reasons must be provided to the applicant for a decision where:

access to a requested document is refused, including because:

a requested document is exempt from release (Part IV of the FOI Act)

the document has not been sufficiently identified in the request (s 15(2))

the document does not exist or cannot be found (s 24A)

a practical refusal reason exists (s 24)

the access provisions do not apply to the document (for example, it is a document to which ss 12 or 13 apply, or the requested document is not a document of an agency or an official document of a minister)

access to the requested document is deferred (s 21)

access will be given in a different form (s 20)

a request to amend or annotate a record is refused (s 51D)

any of the above decisions is made on internal review (ss 53A, 54C(4)).

Content of a s 26 statement of reasons

8.49 A statement of reasons is a notice in writing of:

the decision

the findings on any material questions of fact

the evidence or other material on which those findings are based

the reasons for the decision (including any public interest factors taken into account in deciding to refuse access to a conditionally exempt document)

the name and designation of the person making the decision

information about the applicant's rights to make a complaint or seek a review and the procedure for doing so (s 26(1)).

8.50 A statement of reasons should not include any information that, if it were in a document, would cause that document to be exempt (s 26(2)).[11] It may be necessary to take advantage of s 25 to neither confirm nor deny the existence and characteristics of a document (see paragraph 8.44 above).

8.51 There is no specified form for a statement of reasons. A letter to the applicant may be sufficient as long as it contains all the required information. Where the request involves numerous documents or complex issues relating to exemptions, a statement of reasons and a schedule of documents attached to a letter to the applicant may be more appropriate (see paragraph 8.53 below). The OAIC has developed a checklist to assist agencies with the content of a statement of reasons.[12]

The decision

8.52 The statement of reasons must set out the decision made in relation to each document (or part of document) and address all relevant legislative provisions. The Administrative Review Council suggests that decision makers should quote from the actual legislative provisions rather than paraphrasing to avoid inadvertently changing the meaning.[13]

8.53 The decision needs to clearly identify the documents considered by the decision maker for release (without disclosing exempt material if exemptions are claimed). Preparing a schedule of documents is often helpful in the decision making process. When the decision is made, the schedule (minus any exempt material considered during the process) can be attached to the statement of reasons.

The evidence or other material on which findings of fact are based

8.54 The notice of decision should make it clear how the decision was reached, based on findings of fact. General points about evidence and findings of fact are set out at paragraphs 8.23–8.25 above. The documents that are the subject of an FOI request will often be, or contain, evidence that needs to be considered. For example, a decision maker considering whether to release a document that contains information about Commonwealth-State relations will need to consider whether releasing the document may damage those relations.

8.55 When referring to material or evidence it is important to describe it so it can be easily identified. Merely providing a list of documents that the decision maker considered, however, is unlikely to be sufficient.[14] The decision maker needs to explain how each finding was rationally based on the evidence.

8.56 The statement of reasons should also set out how any conflicting evidence was considered, which was preferred and why.[15] If the decision maker considered recommendations or reports in making their decision, references to those should also be included.

Relevant and irrelevant considerations

8.57 In considering the evidence to make findings of fact, a decision maker must examine and weigh all relevant considerations. For many FOI decisions, the FOI Act sets out the relevant considerations. For example, in making a decision about whether a document is exempt because it is subject to legal professional privilege, a decision maker must consider whether that privilege has been waived (s 42(2)).

8.58 The decision maker must also ensure they do not take into account any irrelevant considerations. The FOI Act specifies irrelevant considerations in relation to some decisions, including the public interest test that applies to conditionally exempt documents (s 11B(4) – see Part 6 of these Guidelines). The applicant's reason(s) for making a request are also irrelevant in making a practical refusal decision (s 24AA(3)(a)).

The reasons for the decision

8.59 The notice of decision must state the reasons for the decision (s 26(1)(a)). The reasons should show a rational connection between the findings of material fact, the decision maker's understanding of the relevant statutory provisions and the decision itself.

8.60 If the decision is to refuse access to a conditionally exempt document, the reasons must include any public interest factors the decision maker took into account (s 26(1)(aa)). In considering the public interest factors, the decision maker must weigh factors for and against disclosure to determine whether access would, on balance, be contrary to the public interest (see Part 6 of these Guidelines). Evidence of the harm that may result from release would need to be considered as part of that process.

8.61 When explaining the reasons, the decision maker should refer to the specific documents requested (or records for amendment/annotation requests) and set out the reasoning process that led to the decision based on the material findings of fact. They must explain the relevant legislative provisions and, if appropriate, can refer to IC review, AAT and court decisions in support of their interpretation of the provisions.

8.62 Where a document is released with deletions, the grounds on which the deletions have been made should be provided, setting out the findings on material questions of fact and referring to the evidence or other material on which those findings were based (see paragraph 8.39 above).

8.63 A draft statement of reasons may be prepared by someone other than the decision maker. However, the decision maker must carefully consider the draft to ensure that it is satisfactory and that he or she personally endorses the reasoning and conclusions.

Other required information

8.64 The statement of reasons should also include:

the name and designation of the decision maker (where the decision relates to a document of an agency) (s 26(1)(b)). Information about the authorisation should also be included (see paragraphs 8.9–8.10 above).

the applicant's review rights, including how to apply for internal and IC review (see Parts 9 and 10 of these Guidelines)

the applicant's rights to make a complaint to the Information Commissioner (see Part 11 of these Guidelines).

8.65 The Information Commissioner recommends that the notice of decision also include information about providing public access to information in the released documents (see paragraph 8.112 below), if that information has not already been provided earlier in the access request process.

Requirement to provide better reasons

8.66 During an IC review, the Information Commissioner may require a decision maker to provide a statement of reasons if they have not done so, or a better statement of reasons if what they provided was inadequate (s 55E).

8.67 An applicant in proceedings before the AAT may also apply to the AAT for a declaration that the statement of reasons provided to them does not contain adequate particulars of:

findings on material questions of fact

the evidence

other material on which those findings were based

the reasons for the decision (s 62).

If the AAT makes such a declaration, the decision maker must provide those particulars to the applicant within 28 days (s 62(2)).

Other notices of decision

8.68 Notice of certain other decisions under provisions of the FOI Act must be given to the applicant, other agencies or third parties. Some of the relevant provisions expressly require the decision maker to give reasons for their decision, as set out below. This means that the decision maker is also obliged to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based, as is required by s 26.[16] Other provisions contain no statutory requirement to provide reasons for the decision. However, the Information Commissioner recommends that, where appropriate, decision makers provide information consistent with the content of a s 26 statement of reasons when providing the following notices of decision.

8.69 The notices of decision are:

to the applicant:

a decision to refuse access to a whole document, where the agency or minister instead provides access to a document that is edited to remove exempt matter (s 22) (see paragraph 8.36 above). The decision maker must give the applicant notice in writing that the edited copy has been prepared. This notice must include the grounds for the deletions, including relevant statutory provisions (s 22(3)). The decision maker must set out the findings on material questions of fact, referring to the evidence or other material on which those findings were based. Section 26 does not apply to a decision under s 22 to refuse access to the whole document unless the applicant requests a s 26 statement (s 22(4))

a decision refusing to amend or annotate a record of personal information as requested (s 51D)

a decision that access will be given to a qualified person instead of the applicant (s 47F(5))

a decision that an applicant is liable to pay a charge (s 29)

a decision to accept an applicant's contention that a charge is incorrect, or should be reduced or not imposed (or both) (s 29(6))

a decision to reject in whole or part the applicant's contention that charges are incorrect or should be reduced or not imposed (or both), and the reasons for that decision (s 29(8)(b)). For more information about notices concerning charges, see Part 4 of these Guidelines

to a third party:

a decision to give access to documents affecting Commonwealth-State relations, where the third party has been consulted (s 26A(3))

a decision by a Norfolk Island authority or minister to give access to documents affecting Norfolk Island intergovernmental relations where the third party has been consulted (s 26AA(3))

a decision to give access to documents that contain business information, where the third party has been consulted and made a submission in support of the exemption contention (s 27(6))

a decision to give access to documents containing personal information, where the third party has been consulted and made a submission in support of the exemption contention (s 27A(5)).

8.70 If a statement of reasons is not provided to a third party as outlined above, that third party may be able to seek reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977. Where a third party is notified of a decision, there is no need to give the FOI applicant the supplementary information provided to the third party (for example, where the decision is to grant the applicant access to all requested documents).

Timeframe for notification of a decision

Default period for requests for access

8.71 An agency or minister must, as soon as practicable, and no later than 30 days after receiving a request, take all reasonable steps to enable the applicant to be notified of a decision on a request for access (s 15(5)(b)).

8.72 The 30 day decision notification period commences on the day after the day the agency or minister received the request, provided the request meets the formal requirements of s 15(2). An agency should act promptly to assist an applicant whose request does not meet the formal requirements (see Part 3 of these Guidelines).

8.73 A ‘day' is a calendar day. However, if the last day for notifying a decision falls on a Saturday, Sunday or a public holiday, the timeframe will expire on the first day following which is none of those days.[17]

8.74 The time that an agency may take in a request consultation process is to be disregarded in working out the 30-day period for notifying a decision (s 24AB(8)). Similarly, the processing period connected with imposing a charge under s 29 is to be disregarded (s 31).

Extending the decision notification period

8.75 To ensure a decision is made within statutory time periods, agencies and ministers are encouraged to build into their FOI process an early and quick assessment of whether an extension may be required. An extension may be available :

because consultation with a State (including a Territory and Norfolk Island), a person or business is required under ss 26A, 26AA, 27 or 27A (s 15(6). See also Part 6 of these Guidelines.)

because consultation with a foreign entity is required under s 15(7)

by agreement with the applicant (s 15AA)

if the request is complex or voluminous, by application to the Information Commissioner for an extension (s 15AB). The Information Commissioner has the discretion to extend the decision notification period by 30 days or another period considered appropriate (which may be less or more than 30 days).

agency or minister must inform applicant of extension as soon as practicable (s 15(8)(b))

Initiated by agency or minister by agreement with applicant – s 15AA

up to 30 days on general period or that period as extended under ss 15(6) or (8)

agency or minister but only with written agreement from applicant

agency or minister must give written notice of the extension to the Information Commissioner as soon as practicable (s 15AA(b))

Complex or voluminous requests – s 15AB

30 days or other period

Information Commissioner upon request from agency or minister

Information Commissioner must inform applicant and the agency or minister of an extension period as soon as practicable (s 15AB(3))

Deemed refusal – s 15AC(4)

As determined by the Information Commissioner

Information Commissioner upon request from agency or minister

No legislative requirement but Information Commissioner may require notification of applicant or third party as a condition of granting the extension (s 15AC(6))

8.77 If a third party is consulted, they should be advised that if a response is not received within the specified timeframe the agency or minister will assume they do not object to release of the documents. The agency or minister must notify the applicant in writing that the timeframe for making the decision is extended due to consultation (ss 15(6)(b) and 15(8)(b)).

8.78 If an agency or minister fails to notify an applicant of a decision within 30 days and no action has been taken to seek an extension of time, a deemed refusal of the request results (see paragraphs 8.82–8.83 below).

8.79 As noted above at paragraph 8.74, time stops running during a request consultation process under s 24AB or if a charges notice is issued under s 29. In both cases, the decision making period is effectively extended by the time required to complete the consultation process. For further information see Parts 3 and 4 of these Guidelines.

Requests for amendment or annotation of personal records

8.80 A decision on amendment or annotation of personal records must be made within 30 days after the day the application was received (s 51D). The extension of time provisions set out above for access requests do not apply to amendment and annotation requests. An agency or minister can only apply to the Information Commissioner for an extension of the processing period after the initial period has expired, that is, when there has been a deemed refusal (s 51DA(3)), although they can enter an informal agreement with the applicant for extra time. For more information, see Part 7 of these Guidelines.

Internal review

8.81 An agency must make an internal review decision within 30 days after the day the application for review was received (s 54C(3)).

Deemed decisions

8.82 A ‘deemed refusal' occurs if the time for making a decision on a request for access to a document has expired without the applicant receiving notice of the decision. When this occurs, the principal officer of the agency or the minister is taken to have personally made a decision refusing to give access to the document (s 15AC).

8.83 Similarly, where the time for making a decision on a request for amendment or annotation of a record has expired without the applicant receiving notice of the decision, the principal officer of the agency or the minister is taken to have personally made a decision refusing to amend or annotate the record (s 51DA).

8.84 A ‘deemed affirmation' of an original decision occurs when the time for making an internal review decision (30 days) has expired without the applicant receiving notice of the decision. If this occurs, the principal officer of the agency is taken to have personally affirmed the original decision (s 54D). A notice of the deemed decision under s 26 is taken to have been given on the last day of the decision period (ss 15AC(3)(b), 51DA(2)(b) and 54D(2)(b)).

8.85 The consequence of a deemed refusal is that an applicant may apply for IC review (ss 54L(2)(a)). An applicant or third party can also apply for IC review of a deemed affirmation of a decision on internal review (ss 54L(2)(b), 54M(2)(b )). In addition, once the time has expired and a deemed decision has arisen, the agency or minister cannot impose charges for access (see Part 4 of these Guidelines).

8.86 Where a decision is deemed to have been made, the agency or minister continues to have an obligation to make a decision on the request. This obligation continues until any IC review of the deemed decision is finalised. For more information about substituting an actual decision for a deemed decision under IC review, see paragraph 8.94 below.

Timeframes for deemed decisions

8.87 A deemed refusal or deemed affirmation is taken to have occurred on the last day of the ‘initial decision' period, that is, 30 days or as extended under any provision, other than the Information Commissioner's discretion to allow further time after a deemed decision has arisen (ss 15AC(3)(a), 51DA(2)(a) or 54D(2)(a)).

8.88 Where there has been a deemed decision, the decision maker may apply to the Information Commissioner in writing for further time to deal with the request (ss 15AC(4), 51DA(3), 54D(3)). The Information Commissioner may allow further time for the decision maker to deal with the request (ss 15AC(5), 51DA(4), 54D(4)).

8.89 In considering what further time may be appropriate, the Information Commissioner will take into account:

the scope and complexity of the request

the reasons for delay (that is, whether extensive consideration of documents is necessary)

the extension sought

the total processing time

whether discussions with the applicant about the delay have occurred

the desirability of the decision being decided initially by the agency or minister rather than by IC review.

8.90 In allowing further time the Information Commissioner may impose conditions (ss 15AC(6), 51DA(5) and 54D(5)). For example, the Information Commissioner may require the decision maker to:

notify the applicant of the further time allowed

provide regular progress reports to the Information Commissioner and the applicant

provide a copy of the notice of decision when made to the Information Commissioner.

8.91 If the decision is made in the further time allowed and any conditions imposed by the Information Commissioner are met, the deemed refusal decision no longer applies and is taken never to have applied (ss 15AC(7), 51DA(6) and 54D(6)). However, if this occurs the agency or minister remains unable to impose charges (regulation 5(2) of the Charges Regulations).

8.92 If the decision is not made within the extended time or any imposed conditions are not met, the deemed refusal decision continues to apply (ss 15AC(8), 51DA(7) and 54D(7)). The Information Commissioner cannot provide further time in which the decision maker may make the decision or comply with the conditions (ss 15AC(9), 51DA(8) and 54D(8)). The applicant can seek IC review of the deemed refusal (see Part 10 of these Guidelines).

Review

8.93 Where a person has applied for IC review of a deemed decision, the Information Commissioner has allowed the decision maker further time and a decision has been made within that further time, the actual decision made is substituted for the deemed decision under review (s 54Y(2)).

8.94 Alternatively, at any time during an IC review an agency or minister may substitute a deemed access refusal decision with a decision that is in the applicant's favour (s 55G(1)). The agency or minister must notify the Information Commissioner in writing of the substituted decision as soon as practicable, and that substituted decision becomes the decision under review (s 55G(2)). See Part 10 of these Guidelines for further information about the IC review process.

Giving applicants access to documents

8.95 Where a decision has been made to give an applicant access to a requested document, that access should be given as soon as practicable, but only after:

any charges the applicant is liable to pay are paid, and

all opportunities a third party may have to seek review of the decision have run out, and the decision still stands or is confirmed.

8.96 Where there is undue delay in providing access to documents, an applicant may complain to the Information Commissioner (s 70(1) – see Part 11 of these Guidelines).

Charges

8.97 The applicant must pay all charges before being given access (s 11A(1)(b) and regulation 11, Charges Regulations), except where the charge relates to supervisory time for the applicant to inspect documents (regulation 11(2) of the Charges Regulations). Where a charge was notified, but the decision on the request was not made within the statutory time limit, the charge cannot be imposed (regulations 5(2) and 5(3)). More information about charges is in Part 4 of these Guidelines.

Third parties' review opportunities

8.98 A third party who was consulted about the release of a document affecting Commonwealth-State relations (s 26A), Norfolk Island intergovernmental relations (s 26AA), business information (s 27) or documents affecting personal privacy (s 27A) may seek internal or IC review of a decision to grant access (ss 53B, 53C, 54A and 54M). An agency or minister must not give an applicant access to a document until all the opportunities a third party may have for review have run out, and the decision to give access still stands, or is confirmed (ss 26A(4), 26AA(4), 27(7) and 27A(6)).

8.99 ‘Run out' times are defined in s 4(1), as set out in Table 2 below.

Table 2: When time runs out for third party review

Circumstances

When time runs out

Maximum time period for third party to apply (in calendar days)

Third party does not apply for either internal or IC review

The latest time for applying for internal review or IC review has ended

(ii) 30 days to apply for IC review from notification of initial decision (the Information Commissioner can extend s 54T(2))

Third party applies for internal review

Internal review has ended (review either completed or decision deemed) and time for applying for IC review has ended

Internal review must be completed within 30 days (decision deemed to have been affirmed after 30 days s 54D), unless Information Commissioner grants an extension (s 54D(4))

30 days from that point to apply for IC review (s 54S(2)) (Information Commissioner can extend s 54T(2))

Third party applies for IC review

IC review has concluded and the time for applying to the AAT (for review) and appealing to the Federal Court (on a question of law) has ended, and the person has not applied or appealed

No limit on how long IC review can take.

Must apply to AAT and Federal Court within 28 days after the IC review decision is given to the applicant (s 29(2) of the AAT Act, s 56(2) FOI Act)

Third party applies for AAT review

AAT proceedings have concluded, and

(i) the time for appealing to the Federal Court has ended and the person has not appealed, or

(ii) if an appeal has been instituted, the proceedings have concluded

28 days after the AAT's decision is given to the third party applicant (s 44(2A) AAT Act), or if an appeal has been lodged, when appeal proceedings have concluded

8.100 Agencies should check with the OAIC as to whether an application has been made for IC review before they give the applicant documents whose release a third party may oppose. This is particularly important because the Information Commissioner may extend the time a person has to apply for IC review even after the 30 day application period is over. It is also good practice to check directly with an affected third party if the agency has not received any indication as to whether that third party intends to seek internal or IC review.

Providing access in stages

8.101 Where the request may involve a large amount of documentation it is open to an agency and an applicant to consult and agree on a staggered approach to release of documents.[18] It may also be appropriate in limited circumstances for an agency to defer access to a document (s 21(1)). Further information about deferred access is at paragraphs 8.34–8.35 above.

Form of access

8.102 Subject to limited exceptions, an applicant who requests access to a document in a particular form has a right to be given access in that form (s 20(2)). Available forms of access are:

provision of a copy of the document (the most common form of access)

a reasonable opportunity to inspect the document where the document is an article or thing from which sounds or visual images are capable of being reproduced, and the making of arrangements for the person to hear or view those sounds or images

where words are recorded in a manner capable of being reproduced in the form of sound or where words are in the form of shorthand writing or in code, a written transcript of the words recorded or contained in the document (s 20(1)).

8.103 The right to access a document in a particular form may be refused in certain circumstances where it is not reasonable or possible and in such cases, access should be given in another form (s 20(3)). An agency or minister should consult the applicant about an alternative form of access. The grounds for refusing access in a particular form are:

where access would interfere unreasonably with the agency's operations or the performance of a minister's functions (s 20(3)(a)) – for example, if an applicant asks to inspect documents that an agency requires for everyday operations

if it would be detrimental to the preservation of the document or not appropriate given the physical nature of the document (s 20(3)(b)) – for example, if a document is fragile or if giving access outside its normal environment might result in damage, or the document cannot be photocopied due to its condition or because it is a painting, model or sculpture

if giving an applicant access to a document in a certain form would, but for the FOI Act, involve an infringement of copyright in relation to the matter contained in the document (s 20(3)(c)). This provision does not apply where the matter contained in the document relates to the affairs of an agency or Department of State or if the copyright holder is the Commonwealth, an agency, Norfolk Island or a state.

8.104 As agencies and ministers obtain greater access to new technology it is expected that they will make reasonable efforts to facilitate access to documents that have not previously been accessible in a particular form. Wherever possible access to documents by means that do not require physical inspection should be preferred.

8.105 The FOI Act gives a legally enforceable right of access to documents that already exist. An agency is not required to create a new document to satisfy an FOI request.[19] However, it may sometimes be simple and more effective to create a new document, for example, where information can be easily compiled from a database to answer a specific request, rather than providing many separate documents with extensive deletions. In those cases, the Information Commissioner encourages agencies to consult the applicant and determine if doing so will satisfy their request (see also paragraphs 8.107–8.110 below).

8.106 A decision to give an applicant access to a document in an alternative form is a decision that may be reviewed internally by an agency and by the Information Commissioner (s 53A).

Information stored in electronic form

8.107 Section 17 requires an agency to produce a written document if the applicant does not wish to be provided with a computer tape or disk. If the information is in the form of a sound recording the agency should provide a transcript (s 17(1)(c)(ii)). Similarly, if the agency could produce a written document through the use of certain hardware and/or software that would meet the particulars of a request, it should do so (s 17(1)(c)(i)). In these cases, the agency must deal with the request as if it were a request for access to the written document and the FOI Act applies as if the agency had such a document in its possession (s 17(1)).

8.108 As the definition of a document includes ‘any part of a document', it is possible for an applicant to request information that is held in electronic form but stored in different formats or across databases. An agency should undertake reasonable efforts to arrange access to that information in one of the forms set out at s 20, or in a hard copy form (s 17). It is open to agencies to consider providing access to information electronically subject to ensuring that the appropriate safeguards in relation to the security of that information are in place.

8.109 An important exception to s 17 operates so that an agency would not have to comply with a request for information by producing a written document if doing so would substantially and unreasonably divert the resources of the agency from its other operations (s 17(2)). This provision should not be applied broadly to prevent an agency from taking reasonable steps to use equipment or software that is ordinarily available to the agency to give an applicant access to information. For information about refusing a request on the basis of unreasonable diversion of resources, see Part 3 of these Guidelines. Agencies are also encouraged to develop guidelines and procedures for the efficient storage and retrieval of such information held on servers, hard disks, portable drives, mobile phone devices and mobile computing.

8.110 The provisions set out at s 17 of the Act apply only to agencies. Ministers and their officers must, however, have regard to s 20 (discussed above at paragraphs 8.102–8.104) when considering the form of access to be given.

Charges for alternative forms of access

8.111 If an agency or minister decides to provide a document in a form different from that requested by the applicant, the charge payable cannot exceed the charge that would have applied if access had been given as the applicant requested (s 20(4)).

Public access to released information

8.112 An agency or minister must publish information that has been released in response to an access request within 10 working days after the day the applicant is given access, subject to certain exceptions (s 11C). The Information Commissioner encourages agencies and ministers to provide advance notice to FOI applicants and third parties that the documents may be published in a disclosure log. See Part 14 of these Guidelines for further information.

Protections when access to documents is given

8.113 The FOI Act provides protection from civil action and criminal prosecution for those involved in giving access to documents under the Act. These protections are designed to ensure that potential legal action does not impede the Act's operation.

Actions for defamation, breach of confidence or infringement of copyright

8.114 Section 90 of the FOI Act provides that no action for defamation or breach of confidence or infringement of copyright lies against the Commonwealth, Norfolk Island, a minister, an agency or an agency officer solely on the ground of having given access, or having authorised access, to a document. The protection applies only in the context of the operation of the FOI Act and requires a decision maker to act in good faith with a genuine belief that publication or access is either required or permitted under the Act.

8.115 Disclosures that are required or permitted include those under s 11C (disclosure log) and those under an agency information publication scheme (s 90(1)(a)). The protection also extends to other requirements or discretions to allow access to government information otherwise than under the FOI Act, whether or not under an express legislative power (s 90(1)(c)).

8.116 The protection also applies where a decision maker has disclosed a document to a third party in the course of undertaking mandatory consultation under ss 26A, 26AA, 27 or 27A, and even where a decision maker has failed to consult when required under those provisions (ss 91(1A), (1B) and (1C)).

8.117 The protection extends in part to the author of a document that was released. The protection for authors is limited to immunity from liability arising out of supplying the relevant document to the minister or agency which subsequently released it under the FOI act (ss 90(2), 91(1C)).

8.118 Disclosure that is protected under the FOI Act (whether to an applicant or for the purposes of consultation) does not authorise or constitute approval of republication of defamatory material or further breaches of confidence or copyright by the person to whom access is given under the FOI Act (s 91(2)). For example, an FOI applicant who disseminates defamatory material in any document they received under the FOI Act may be liable for defamation in the usual way. If a decision maker proposes to disclose documents that may contain defamatory material, it would be good practice to draw the applicant's attention to the possibility that further dissemination of the documents may expose the applicant to liability and that he or she should seek legal advice before doing so. Where a third party owns copyright in material an agency or minister releases as part of its response to an FOI request, the agency or minister should advise the applicant that they may need to seek permission from the copyright owner in order to reuse the material. A statement such as the following could be used:

To the extent that copyright in some of this material is owned by a third party, you may need to seek their permission before you can reuse that material.

8.119 For further guidance on agency copyright notices in connection with the information publication scheme and the disclosure log, see Parts 13 and 14 of these Guidelines.

Offences

8.120 Section 92 operates in a similar way to section 90 to provide that neither a minister nor a person authorising access, or being involved in providing access, to a document is guilty of a criminal offence by reason only of that action. For example, where a secrecy provision in other legislation would otherwise prohibit the disclosure of a document, s 92 will relieve any minister or authorised officer of an agency from criminal liability if they authorise or give access under the FOI Act.[20] This immunity extends to disclosures for the purposes of undertaking mandatory consultation under ss 26A, 26AA, 27 or 27A of the FOI Act (s 92(2)). To benefit from the immunity, the minister or authorised officer must act in good faith with a genuine belief that disclosure is required or permitted under the FOI Act.

[9] For further information on contracted service providers see Documents held by government contractors: Agency obligations under the Freedom of Information Act 1982, available at www.oaic.gov.au.

[10] Normal administrative practice allows agencies to destroy certain types of records which are not needed to document business decisions or are not significant records of an agency's business. For further guidance see the National Archives of Australia website at www.naa.gov.au/records-management/keep-destroy-transfer/NAP/NAP-detail.aspx.

[20] Secrecy provisions that are listed in Schedule 3 of the FOI Act or are expressed to be applicable for the purposes of s 38 of the FOI Act operate as an exemption under s 38 – see Part 5 of these Guidelines.